Hiam v. Homeaway,com, Inc.

Filing 75

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the foregoing reasons, this Court GRANTS HomeAways motion for summary judgment as to all counts of the Plaintiffs Second Amended Complaint. Judgment shall enter for HomeAway.SO ORDERED."(Sonnenberg, Elizabeth)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PETER HIAM and
BROOKE HUTCHENS,
Plaintiffs,
v.
HOMEAWAY.COM, INC.,
Defendant.

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CIVIL ACTION
NO. 16-10360-WGY

YOUNG, D.J.

July 27, 2017
MEMORANDUM & ORDER

I.

INTRODUCTION
Peter Hiam (“Hiam”) and Brooke Hutchens (“Hutchens”)

(collectively, the “Plaintiffs”) sued HomeAway.com, Inc.
(“HomeAway”) under Massachusetts and Colorado consumer
protection laws, as well as common law aiding and abetting
fraud, in connection with vacation rentals posted on HomeAway’s
website.

HomeAway moved for summary judgment, asserting

protections for “interactive computer service” providers under
the Communications Decency Act (“CDA”).

For the reasons stated

below, this Court GRANTS HomeAway’s motion for summary judgment.
A.

Procedural History

On February 19, 2016, Hiam sued HomeAway.
1.

Hiam amended his complaint twice.

Compl., ECF No.

Second Am. Compl.

(“SAC”), ECF No. 31.

On December 14, 2016, the Court added

Hutchens as a party to the action.

HomeAway answered, asserting

the affirmative defense that the CDA bars the Plaintiffs’
claims.

Answer Second Am. Compl. 20, ECF No. 33.

On February

1, 2017, HomeAway moved for summary judgment, Def. HomeAway.com,
Inc.’s Mot. Summ. J., ECF No. 38, and the parties submitted
briefs and supporting statements of facts.

Mem. Law Supp.

HomeAway.com, Inc.’s Mot. Summ. J. (“Def.’s Mem.”), ECF No. 39;
HomeAway.com, Inc.’s Statement Undisputed Material Facts Supp.
Mot. Summ. J. (“Def.’s Facts”), ECF No. 40; Pls.’ Opp’n Def.’s
Mot. Summ. J. (“Pls.’ Opp’n”), ECF No. 45; Pls.’ Statement
Undisputed Facts Opp’n Def.’s Mot. Summ. J. (“Pls.’ Facts”), ECF
No. 46; Reply Mem. Law Supp. HomeAway’s Mot. Summ. J. (“Def.’s
Reply”), ECF No. 56; Pls.’ Surreply Def.’s Reply Mem. Re Summ.
J. (“Pls.’ Surreply”), ECF No. 60.

After an oral hearing, the

Court took the motion under advisement, Electronic Clerk’s
Notes, ECF No. 64, and the parties filed post-argument briefs,
Pls.’ Post-Arg. Mem. Re Summ. J., ECF No. 66; Reply Mem. Law
Supp. HomeAway’s Mot. Summ. J., ECF No. 69.
B.

Facts Alleged
1.

HomeAway’s Basic Rental Guarantee, Terms and
Conditions, and Privacy Policy

HomeAway is a Delaware corporation that owns a website with
the domain name, VRBO.com (“VRBO”).

[2]

Def.’s Facts ¶¶ 1, 2.

VRBO, which stands for “Vacation Rentals By Owner,” is a forum
on which users may list properties for rent or rent properties
from others.

Id. ¶ 3.

The website contains language setting

forth certain HomeAway policies, conditions, and guarantees in
connection with using the website.
First, the website offers a Basic Rental Guarantee
(“Guarantee”) to eligible users, referred to in the Guarantee as
“registered traveler[s]”.

Aff. Amanda McGee, Ex. 4, Decl.

Brittany Miers, Attachment A (“Basic Rental Guarantee”) 4, ECF
No. 41-4.1

Pursuant to the Guarantee’s terms, HomeAway will

reimburse qualifying users up to $1,000 “where such funds are
lost or misappropriated as the result of Internet Fraud.”
at 5.

Id.

The Basic Rental Guarantee defines internet fraud as:
a deposit or payment by a Registered Traveler for a
vacation rental . . . where such listing is
subsequently determined to be, in HomeAway’s
reasonable discretion, fictitious or illegitimate
because the holiday rental property (i) does not exist
as a property available for rent, or (ii) was
advertised with the intention of defrauding travelers
. . . .

Id.

The Guarantee further sets out several requirements to

qualify for the reimbursement, two of which are relevant here.
First, the user must submit a request form within the allotted
period.

Id. at 6-7.

Second, the property owner or manager and

Because ECF No. 41-4 contains three separate documents,
for the sake of simplicity, this opinion cites to the
continuously paginated ECF document page numbers.
1

[3]

PayPal, bank, payment provider, or credit card issuer must deny
the user reimbursement.

Id.

The Guarantee stipulates that

HomeAway “DOES NOT protect against . . . [p]ayments . . . made
to any property owner or manager via . . . instant wire transfer
services.”

Id. at 5.

It does not state that HomeAway pre-

screens or monitors rental postings.

Rather, the Guarantee

explains that it “is intended to provide protection against
Internet Fraud . . . .”

Id. at 4.

Generally, the Guarantee

outlines the registered traveler’s obligations to furnish
HomeAway with relevant information while the company considers
the user’s reimbursement request.

Id. at 6-8.

Second, HomeAway’s Terms and Conditions explicitly disavow
“any responsibility for[] the confirmation for each user’s
purported identity.”

Aff. Amanda McGee, Ex. 4, Decl. Brittany

Miers, Attachment B (“Terms & Conditions”) 13, ECF No. 41-4.
The Terms and Conditions also strongly recommend –- at least
twice repeating -- that travelers communicate directly with
property owners, in addition to “tak[ing] other reasonable
measures to assure yourself of the other person’s identity and
. . . of the property and relevant details of your booking
. . . .”

Id.

The Terms and Conditions state that while

HomeAway “take[s] certain measures with a goal to assist users
to avoid potentially fraudulent or other illegal activity of
which [it] become[s] aware, [HomeAway] assume[s] no liability or

[4]

obligation to take any such measures or actions.”

Id. at 11.

HomeAway further insulates itself by adding:
We have no duty to pre-screen content posted on the
Site by members, travelers or other users . . . . All
property listings on the Site are the sole
responsibility of the member . . . and we specifically
disclaim any and all liability arising from the
alleged accuracy of the listings . . . . We do not
represent or warrant that any of the . . . content
. . . published on the Site is accurate or up-to-date
. . . .
Id. at 14.

Again, HomeAway stated that it “assume[s] no

responsibility to verify property listing content or the
accuracy of the location.

Members are solely responsible for

ensuring the accuracy of listing content . . . and travelers are
solely responsible for verifying the accuracy of such content
. . . .”

Id. at 15.

The disclaimer section emphasizes (in

bold, capital letters),
To the fullest extent permissible by law, we make no
representations or warranties of any kind whatsoever
for the content on the site . . . . Further, we
expressly disclaim any express or implied warranties
. . . . We have no control over and do not guarantee
(other than pursuant to any guarantee the [sic] may be
offered on the site) . . . the truth or accuracy of
any listing or other content . . . .
Id. at 18.
Third, HomeAway’s Privacy Policy outlines how, when, and if
HomeAway will disclose users’ personal information.

Aff. Amanda

McGee, Ex. 4, Decl. Brittany Miers, Attachment C (“Privacy
Policy”) 32, ECF No. 41-4 (emphasis added).

[5]

The relevant

provision states that HomeAway “may disclose your personal data
to enforce our policies . . . .”
2.

Id.

The Jewels of Belize

In April 2014, Hiam2 and Hutchens attempted to rent the
vacation property known as the “Jewels of Belize Estate.”
Def.’s Facts ¶¶ 36, 54.

Both Hiam and Hutchens communicated

directly with an individual using the Jewels of Belize email
account associated with the listing.

Id. ¶¶ 36-37.

To reserve

the property, both Hiam and Hutchens followed the directions
provided by the Jewels of Belize “agent” and wired an initial
deposit for fifty percent of the total rental amount.
¶¶ 41, 55.

Id.

On April 22, 2014, Hiam wired his security deposit

of $23,282.50 to a TD Bank account.

Id. ¶ 41.

Hutchens

similarly followed the wiring instructions, transferring
$26,343.75 to the account on April 24, 2014.

Id. ¶ 55.

Hiam

wired his second payment on October 2, 2014; Hutchens, on July
18, 2014.

Id. ¶¶ 41, 55.

After wiring his second installment, Hiam heard nothing
further from anyone associated with the Jewels of Belize rental

Hiam asked his son to research destinations for a family
vacation. Hiam’s son saw the Jewels of Belize listing on VRBO.
Def.’s Facts ¶¶ 27-29. Both Hiam and his son communicated with
Jewels of Belize and then with VRBO customer support in
connection with their fraud complaint. See Aff. Amanda McGee,
Ex. 5 (“Dayva Graham Correspondence”), ECF No. 41-5. Therefore,
for the purposes of this analysis, the Court does not
distinguish between Hiam and his son, a non-party.
2

[6]

property.

Id. ¶ 42.

Having heard nothing from the property

manager, Hiam contacted VRBO’s customer support about two weeks
before his reservation was scheduled to begin.

Id. ¶ 43.

Customer support informed Hiam that they too could not reach the
property owner due to the disconnected phone number but that the
company had “determined this owner to be a real person who . . .
had successful stays in the past, which does not meet
[HomeAway’s] definition of fraud.”
(“VRBO E-mails”) 2-3, ECF No. 41-7.
the owner’s identity.

Id. at 3.

Aff. Amanda McGee, Ex. 7
In response, Hiam requested

Several weeks later, a U.S.

Trust and Security Specialist expressed gratitude for Hiam’s
“patience [during the] investigation,” but denied Hiam’s request
for the Jewels of Belize owner’s information “due to privacy
concerns.”

Id. at 1.

While Hiam did not hear from anyone associated with the
Jewels of Belize property after wiring his second payment,
Hutchens received a call from “Dayva” on October 19, 2014.
Def.’s Facts ¶ 57.

Dayva told Hutchens that since the estate

was no longer available, Jewels of Belize arranged for
alternative accommodations at a nearby hotel resort.

Id. ¶ 57.

A few days into Hutchens’s trip, the hotel informed Hutchens
that Jewels of Belize’s checks covering Hutchens’s hotel
reservations bounced, and the hotel demanded payment from
Hutchens.

Id. ¶ 58.

Hutchens complied.

[7]

Id. ¶ 59.

The hotel

later reimbursed Hutchens “based on payments made to the hotel
by Jewels of Belize.”

Id. ¶ 60.

reported the incident to VRBO.

Upon her return, Hutchens

Id. ¶ 61; Aff. Amanda McGee, Ex.

8 (“VRBO Property Complaints”) 8, ECF No. 41-8.

After searching

for the property location on Google Earth, VRBO responded that
those “images have a general date of 2014.

The image could be

two weeks old, or it could be 11 months old.”

Aff. John

Traficonte, Ex. 1 (“Massara Case Comments”) 3, ECF No. 48-1.
Based on these events, Hiam and Hutchens brought this
action pursuant to Massachusetts and Colorado consumer
protection statutes and common law aiding and abetting fraud.
SAC ¶¶ 73-93, 98-106.

Hiam alleges unfair or deceptive trade

practices under Massachusetts General Laws Chapter 93A (count
II) and associated consumer protection regulations (count VII).
Id. ¶¶ 73-80, 102-06.
(count III).

He also raises a concert of action claim

Id. ¶¶ 81-85.

Jointly, Hiam and Hutchens assert a

fraud and misrepresentation claim (count IV), id. ¶¶ 86-93, and
a claim of unjust enrichment (count V), id. ¶¶ 94-97.

Hutchens

brings a claim for deceptive trade practices under Colorado’s
consumer protection law (count VI).

Id. ¶¶ 98-101.

The

Plaintiffs also seek declaratory relief to clarify HomeAway’s
forum-selection clause and one-year claims limitation period as
enumerated in HomeAway’s Terms and Conditions (count I).
¶¶ 69-72.

[8]

Id.

II.

ANALYSIS
A.

Standard of Review

“Summary judgment is appropriate when ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’”

Medina-Munoz v.

R.J. Reynolds Tobacco Co., 896 F.2d 5, 7-8 (1st Cir. 1990)
(citing Fed. R. Civ. P. 56(c)).

“[T]he mere existence of some

alleged factual dispute between the parties will not defeat” a
summary judgment motion.

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247 (1986) (emphasis in original).
dispute must be both genuine and material.

Rather, a factual
Id. at 248.

When

determining whether there is a genuine and material factual
dispute, the court construes the record and draws all reasonable
inferences in the nonmoving party’s favor.

Id. at 255.

Where

the moving party bears the burden of proof, absent binding
admissions by the non moving party, summary judgement is
inappropriate as the fact finder could reject the evidence
proffered by the moving party.

See Reeves v. Sanderson

Plumbing, 530 U.S. 133, 150-51 (2000).

[9]

B.

Statutory Immunity under Section 230 of the
Communications Decency Act

Section 230 of the Communications Decency Act, 47 U.S.C. §
230, provides “broad immunity to entities . . . that facilitate
the speech of others on the Internet.”

Universal Commc’n Sys.,

Inc. v. Lycos, Inc., 478 F.3d 413, 415 (1st Cir. 2007).

To

further this objective, “[n]o provider or user of an interactive
computer service shall be treated as the publisher or speaker of
any information provided by another information content
provider,” 47 U.S.C. § 230(c)(1), and “[n]o cause of action may
be brought and no liability may be imposed under any State or
local law that is inconsistent with this section,” id.
§ 230(e)(3).

The CDA, therefore, precludes a state law claim

where three criteria are met: “(1) [the entity] is a ‘provider
or user of an interactive computer service’; (2) the claim is
based on ‘information provided by another information content
provider’; and (3) the claim would treat [the entity] ‘as the
publisher or speaker’ of that information.”

Universal Commc’n

Sys., Inc., 478 F.3d at 418.
As a result, “lawsuits seeking to hold a service provider
liable for its exercise of a publisher’s traditional editorial
functions -- such as deciding whether to publish, withdraw,
postpone or alter content -- are barred.”

Zeran v. America

Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).

[10]

In addition to

these “traditional editorial functions” adopted by the Fourth
Circuit, the First Circuit has added website construction and
operation, including a website operator’s “decisions about how
to treat postings generally.”
F.3d at 422.

Universal Commc’n Sys., Inc., 478

“A key limitation in Section 230, however, is that

immunity only applies when the information that forms the basis
for the state law claim has been provided by ‘another
information content provider.’”
230(c)(1)).

Id. at 419 (quoting 47 U.S.C. §

Therefore, if the Court determines that the

Plaintiffs’ causes of action are based on HomeAway’s own
content, CDA immunity will not attach.

See id. (“[A]n

interactive computer service provider remains liable for its own
speech.”).3
In asserting CDA immunity, HomeAway argues that it “does
not create or develop information content,” Def.’s Mem. 11, and
that it was in fact Jewels of Belize that created the content of
the listing at issue.

Id.

The Plaintiffs respond that their

“claims are based on ‘information content’ expressly provided by

Further, Section 230 immunity only attaches to
“interactive computer service” providers. 47 U.S.C. § 230(f)(2)
(“[A]ny information service, system, or access software provider
that provides or enables computer access by multiple users to a
computer server, including specifically a service or system that
provides access to the Internet.”). It is undisputed that
HomeAway meets this criterion, as VRBO.com “enables computer
access by multiple users to a computer server,” specifically the
server that hosts the travel site. Id.
3

[11]

[HomeAway] on its website and on its own actions taken in
connection with that ‘information content.’

Specifically, each

challenged claim is predicated, in whole or in significant part,
on the consumer guarantee by [HomeAway] of each of its
listings.”

Pls.’ Opp’n 7.

Although HomeAway is entitled to statutory immunity on some
claims, the Plaintiffs are able to circumvent the CDA on other
claims by basing those claims on HomeAway’s Basic Rental
Guarantee and Privacy Policy.

Hiam and Hutchens assert that

through those policies, HomeAway promises (1) a reasonable
investigatory process into complaints of fraud and (2) that the
website undertakes some measure of verification for each
posting.

See Moving & Storage, Inc. v. Panayotov, No. 12-12262-

GAO, 2014 WL 949830, at *2 (D. Mass. Mar. 12, 2014) (O’Toole,
J.) (“[T]he plaintiffs treat the third-party customers as the
publishers or speakers and bring ‘causes of action based not on
[the defendants’] publishing conduct but on [their]
representations regarding such conduct, [which] would not be
immunized under [the CDA].’” (alterations in original) (quoting
Levitt v. Yelp! Inc., 2011 WL 5079526, at *9 (N.D. Cal. 2011))).
The Plaintiffs also successfully cast their fraud and
misrepresentation claim in terms of HomeAway-authored
information content and HomeAway’s actions in connection with
that content.

Pls.’ Opp’n 7.

Similarly, HomeAway is not immune

[12]

from liability for unfair or deceptive trade practices brought
under Massachusetts and Colorado consumer protection statutes,
as these allegations seek to hold HomeAway “liable for its own
speech.”

Universal Commc’n Sys., Inc., 478 F.3d at 419.

Nevertheless, the claims that do escape the CDA’s reach
cannot withstand summary judgment.

First, the Plaintiffs suffer

from a sufficiency of evidence problem because they cannot prove
an essential element of their remaining claims.

Second,

allegations based on HomeAway’s Privacy Policy present no trialworthy dispute.

Third, as the Plaintiffs have alternative

remedies at law, their unjust enrichment claim also fails as
matter of law.

For these reasons, the Court GRANTS summary

judgment in favor of HomeAway.4

The Plaintiffs argue that HomeAway’s motion relates only
to the issue of CDA immunity. Pls.’ Opp’n 1-2, 11 n.9.
According to the Plaintiffs, then, the Court ought not “move[]
up” the issue of whether HomeAway makes an implied promise in
the Guarantee, and if there is such a representation, the scope
of that promise. Pls.’ Surreply 1-2. True, HomeAway dedicates
its dispositive motion, almost exclusively, to the issue of
statutory immunity. HomeAway’s strategic decision in its brief
does not, however, narrow its motion for summary judgment to one
for partial summary judgment. See Small Justice LLC v. Xcentric
Ventures LLC, 99 F. Supp. 3d 190, 200-01 (D. Mass. 2015)
(Casper, J.) (ruling that the plaintiffs failed to meet the
requirements of a Chapter 93A claim despite the defendant only
presenting a CDA immunity argument against this claim in its
motion for summary judgment). Therefore, after determining
whether the CDA bars any of the Plaintiffs’ claims, the Court
rules, as matter of law, whether the language of the Guarantee
carries the weight the Plaintiffs import.
4

[13]

C.

Unfair or Deceptive Trade Practices under
Massachusetts General Laws Chapter 93A (Counts II and
VII) (Hiam)

Hiam alleges five acts that he considers unfair or
deceptive: (1) HomeAway held “itself out as providing a
reasonable investigatory process to detect, prevent and
compensate for fraudulent use of its site while conducting sham
investigations,” SAC ¶¶ 75(1), 78, (2) HomeAway adopted the
fraudulent content in the Jewels of Belize rental listing in
private emails, id. ¶ 75(2), (3) HomeAway failed to honor its
obligations under its Basic Rental Guarantee by refusing to
acknowledge that the Jewels of Belize listing was fraudulent,
id. ¶ 76, (4) HomeAway violated its Privacy Policy by refusing
to disclose user information and payment arrangements, id. ¶¶
75(3), 77, and (5) HomeAway violated the Attorney General’s
Travel Services regulations, which is a per se Chapter 93A
violation, id. ¶¶ 103-05.
Massachusetts consumer protection law prohibits “unfair or
deceptive acts or practices in the conduct of any trade or
commerce,” Mass. Gen. Laws ch. 93A, § 2(a), but does not itself
“provide standards for determining what constitutes an unfair or
deceptive act.”

Boyle v. International Truck & Engine Corp.,

No. 01–10039–DPW, 2002 WL 823810, at *6 (D. Mass. Apr. 23, 2002)
(Woodlock, J.).

To find a Chapter 93A violation, courts

examine: “1) whether the practice falls within the penumbra of

[14]

common-law, statutory, or other established concepts of
unfairness; 2) whether it is immoral, unethical, oppressive, or
unscrupulous; and 3) whether it causes substantial injury to
consumers . . . .”

Id. (citing PMP Assocs., Inc. v. Globe

Newspaper Co., 366 Mass. 593, 596 (1975)).

Therefore, count VII

alleging violations of the Attorney General’s Travel Services
regulations is essentially a reiteration of count II for unfair
or deceptive trade practices under Chapter 93A.

These

regulations are “practice[s] [that] fall[] within the penumbra
of . . . statutory . . . concepts of unfairness.”
1.

Id.

Treating HomeAway as a “Seller of Travel
Services” under Massachusetts Consumer Protection
Regulations is Barred by the CDA (Count VII)
(Hiam)

As a “[v]iolation of any provision of 940 CMR 15.00 shall
be an unfair or deceptive act or practice, under M.G.L. c. 93A,
§ 2(a),”

940 Mass. Code Regs. 15.01(1), count VII is analyzed

in tandem with count II.

Chapter 15 of the Attorney General’s

consumer protection regulations pertains to the travel services
industry.

A “seller of travel services” is a “business entity .

. . that sells, provides, contracts for, or arranges travel
services, or that represents that it sells, provides, contracts
for, or arranges travel services . . . .”

Id. 15.02.

The

regulations define “travel services” as “the provision of . . .
other goods or services related to recreational . . . travel,

[15]

including but not limited to lodging, food, guided tours, or
instruction.”

Id.

Here, VRBO.com is a venue through which third parties can
post rental properties.

Def.’s Facts ¶ 3.

The website

“offer[s] online booking or other tools or services to allow
users to communicate with each other and enter into rental
agreements or other transactions.”

Terms & Conditions 10.

HomeAway specifically disavows being a party to any transaction
between users.

Id.

It further acknowledges that it “do[es] not

own or manage, nor can [it] contract for, any vacation rental
property listed on [the] Site.”

Id.

Despite these renunciations, Hiam believes HomeAway
qualifies as a seller of travel services.

Because, however,

HomeAway merely provides a venue for others to sell or provide
lodging, but does not provide the actual facility where people
can “lodge,” HomeAway does not fit within the statutory
definition of a “seller of travel services.”

See Collette v.

Unique Vacations, Inc., No. 9861, 2004 WL 757840, at *3 (Mass.
App. Div. Mar. 30, 2004) (expressing doubt that reservation
booking company qualifies as a “seller of travel services” under
940 Mass. Code Regs. 15.02).
Even were the Court to assume that HomeAway is a “seller of
travel services” subject to the consumer protection regulations,
the CDA bars this claim.

Treating HomeAway as a “seller of

[16]

travel services” requires the Court to treat HomeAway as the
seller of the third party owned and operated Jewels of Belize
vacation property.

To hold HomeAway liable for misleading or

inaccurate material (e.g., images from another property listing
appearing on a different HomeAway website being duplicated on
the VBRO.com Jewels of Belize rental account) in the third party
created Jewels of Belize listing contravenes Section 230 of the
CDA.

As noted above, CDA immunity attaches when a plaintiff

attempts to hold a website operator liable for content created
by “another information content provider.”

47 U.S.C. §

230(c)(1).
The Plaintiffs circumvent CDA immunity for their other
consumer protection claims by resting those allegations on
HomeAway’s own Basic Rental Guarantee.

In so narrowing their

claims, however, the Plaintiffs have limited themselves to
relying only on the language of HomeAway’s own content.

Hiam’s

claim based on a violation of 940 Code of Massachusetts
Regulations section 15 fails for two additional reasons.

First,

Hiam impermissibly conjures up a promise to verify listings.

As

discussed below, the Guarantee does not contain an implied
representation to pre-screen or verify postings.

Second, this

Court concludes that the Guarantee is not materially misleading
under section 15.03(2).

The regulation provides specific

examples of representations that mislead in a “material

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respect.”

These include, but are not limited to, “the name,

location, or amenities of any lodging; . . . the terms of any
insurance policy offered by or through the seller of travel
services; [and] the terms of any cancellation or refund policy
of any seller of travel services that may apply to a consumer’s
purchase of travel services . . . .”
15.03(2).

940 Mass. Code Regs.

As discussed infra, the Guarantee’s refund

eligibility requirements are not misleading, and the Guarantee
does not speak to the accuracy of any listing, including the
name or location of the property available for rent.
Furthermore, HomeAway’s Terms and Conditions emphatically
disclaim any such accuracy.
Accordingly, this Court concludes that HomeAway is not a
seller of travel services, and that the CDA bars any such
treatment.
2.

Count VII therefore fails as matter of law.
Chapter 93A Violations Where HomeAway is Not a
Seller of Travel Services (Count II) (Hiam)

Because HomeAway is not a seller of travel services, it is
entitled to judgment as matter of law.

Hiam’s claims allegedly

arising from HomeAway’s Guarantee and Terms and Conditions fail
because Hiam has failed to prove essential elements of his case,
“necessarily render[ing] all other facts immaterial.”
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

[18]

Celotex

HomeAway is also

entitled to summary judgment on the Plaintiffs’ claims based on
HomeAway’s Privacy Policy.
a.

HomeAway’s Basic Rental Guarantee: Promise
to Investigate Fraud

Under Massachusetts law, an unfair practice or
“objectionable conduct must attain a level of rascality that
would raise an eyebrow of someone inured to the rough and tumble
of the world of commerce.”

Levings v. Forbes & Wallace, Inc., 8

Mass. App. Ct. 498, 504 (1979); see also Cummings v. HPG Int’l,
Inc., 244 F.3d 16, 25 (1st Cir. 2001) (“[A] defendant’s
allegedly unfair conduct ‘must at least come within shouting
distance of some established concept of unfairness.’” (quoting
Massachusetts Sch. of Law at Andover, Inc. v. American Bar
Ass’n, 142 F.3d 26, 42 (1st Cir. 1998))).

“Whether a party’s

conduct amounts to an unfair or deceptive act or practice is
matter of fact.”

Bridge Over Troubled Waters, Inc. v. Argo Tea,

Inc., No. CV 15-13610-WGY, 2016 WL 7238793, at *5 (D. Mass. Dec.
14, 2016) (citing Spence v. Boston Edison Co., 390 Mass. 604,
616 (1983)).
Notwithstanding the Plaintiffs’ broad, unsupported
assertion that using the word “guarantee” in the refund policy’s
title transforms it into a sweeping promise that every third-

[19]

party listing is accurate or verified,5 HomeAway’s Basic Rental
Guarantee meets all of the factors indicative of a genuine
guarantee.

940 Mass. Code Regs. 3.03(1).

The Guarantee

identifies and defines what it purports to protect: internet
fraud.

Basic Rental Guarantee 4, 5.

It further sets forth the

requirements for claiming protections, id. at 4, 6-8, as well as
examples of conduct not protected, id. at 5-6.

The first four

words of the Basic Rental Guarantee establish what HomeAway, the
“guarantor”, undertakes to do: reimburse qualifying users.
at 4.

Id.

The language of the Guarantee is clear and unambiguous.
Count II purportedly arises out of HomeAway’s promise to

investigate fraud complaints in connection with the Basic Rental
Guarantee.
fictitious.

Hiam contends that HomeAway’s investigations were
Pl.’s Opp’n 9.

The undisputed facts, however, show

HomeAway investigated Hiam’s and Hutchens’s complaints.

VRBO’s

customer support attempted to contact the Jewels of Belize
property manager and forwarded Hiam’s and Hutchens’s complaints
to the contact on file.

See Dayva Graham Correspondence, VRBO

E-mails, Aff. Amanda McGee, Ex. 9 (“Hutchens Case Comments”),

The Plaintiffs claim that “[t]he issue of the legal effect
or nature of a consumer guarantee -- whether such a ‘guarantee’
is an implied representation or promise -- is an issue that
should be decided only after CDA immunity . . . .” Pls.’
Surreply 1-2. The Plaintiffs do not provide, nor does there
appear, any case law to support that approach. Here, however,
the Court has analyzed CDA immunity first as a matter of
analytic approach. It need not have done so.
5

[20]

ECF No. 41-9.
complaint.

In fact, the Plaintiffs concede this in their

SAC ¶ 66.

In response to Hutchens’s report that the

Jewels of Belize estate was “half constructed dumps,” HomeAway
conferred with Google Earth but acknowledged that its
investigation came up with insufficient material to confirm or
deny Hutchens’s description of the property.

Case Comments 3.

HomeAway also investigated Hiam’s complaint.

A U.S. Trust and

Security Specialist described the steps she took, results of
that effort, and further action she would be taking in response
to Hiam’s formal complaint, and explained that the situation did
not satisfy HomeAway’s definition of internet fraud because the
company “determined this owner to be a real person who has had
successful stays in the past . . . .”

VRBO E-mails 2-3.

Further, the Specialist searched the New York Secretary of
State’s database and discovered that the mailing address Hiam
provided to HomeAway was registered to Spiegel & Utrera.
2.

Id. at

Two months later, another Specialist explained why –-

according to HomeAway’s definition –- the Jewels of Belize
listing was not fraudulent: an authorized property owner created
the rental listing and the property was legitimate.

Id. at 1.

Therefore, the undisputed facts show that HomeAway fulfilled its
promise to investigate.
The Plaintiffs expand this promise to investigate into a
promise to investigate reasonably.

[21]

The Plaintiffs assert that

if HomeAway’s conduct can even qualify as an investigation, such
investigation was a “sham.”

Pls.’ Opp’n 9.

The Plaintiffs’

characterization does not make this issue trial-worthy.

First,

as matter of law, the language of the Guarantee does not contain
such a promise as the Plaintiffs import.

The Plaintiffs seem to

trace a promise to conduct a reasonable investigation from the
Guarantee’s definition of internet fraud as a refund for a
rental property “where such listing is subsequently determined
to be, in HomeAway’s reasonable discretion, fictitious . . . .”
Id.

The word “reasonable” pertains to HomeAway’s “discretion”

in investigating (i.e., what to investigate and how), not the
investigation itself.

Basic Rental Guarantee 5.

HomeAway is

not stepping into the shoes of a jury and determining whether,
as matter of fact, there has been fraud in the legal sense of
the term.

Instead, HomeAway is attempting to discern, in its

reasonable discretion, whether the property (1) exists as a
property available for rent or (2) was advertised with the
intention of defrauding perspective renters into believing that
the property was available for rent.

Id.; see also Doe v.

Trustees of Boston Coll., No. 15-CV-10790, 2016 WL 5799297, at
*12 (D. Mass. Oct. 4, 2016) (Casper, J.) (declining to “second
guess the thoroughness or accuracy of a university
investigation, so long as the university complied with the terms

[22]

of its policies”).

Therefore, the Guarantee’s language promises

to investigate for those two elements and no more.
Even if a trier of fact could conclude that the Guarantee
promises a reasonable investigation, the Plaintiffs will be
unable to meet their burden of proof with the facts contained in
the record.

Besides their colorful descriptions, the Plaintiffs

have no such support, and discovery in this matter is complete.
See Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145,
152 (1st Cir. 2009).

The record before this Court simply cannot

sustain Hiam’s allegation that there was no investigation or
that the investigation was a sham.

Thus, summary judgment is

appropriate because “after adequate time for discovery . . .
[Hiam] fails to make a showing sufficient to establish the
existence of an element essential to [his] case, and on which
[he] will bear the burden of proof at trial.”

Celotex Corp.,

477 U.S. at 322.
b.

HomeAway’s Basic Rental Guarantee: Promise
to Verify Third-Party Posts

The Guarantee’s language simply cannot be read as a promise
that HomeAway undertakes “some measure of verification and
polic[es]” third-party content.

SAC ¶ 78.

The Plaintiffs imply

that merely by using the word “guarantee,” in the title of its
Basic Rental Guarantee, HomeAway represented that it verified
third-party listings.

Pls.’ Opp’n 14.

[23]

The Plaintiffs cite to the definition of “guarantee”
provided in Massachusetts consumer protection regulations, 940
Mass. Code Regs. 3.01.

The Plaintiffs’ recitation, however,

removes a key component of the definition: that it governs the
term’s usage in the regulations.

Pls.’ Surreply 2.

The

regulation reads, “[t]he terms ‘warranty’ or ‘guarantee’ or any
term connoting a warranty or guarantee as used in 940 CMR 3.00
are synonymous.”

940 Mass. Code Regs. 3.01 (emphasis added).

The omitted portion, “as used in 940 CMR 3.00,” is not
appositive, as the Plaintiffs suggest.

Rather, the phrase

stands to thwart a reading that “warranty” and “guarantee” are
synonymous generally, by restricting such a reading only to the
words as used in the regulations.
Recently, another Session of this Court addressed the
Plaintiffs’ argument that “[a] consumer obviously understands a
‘guarantee’ to be some form of promise or representation or
warranty . . . .”

Pls.’ Opp’n 13.

In Carlson v. The Gillette

Company, No. CV 14-14201-FDS, 2015 WL 6453147 (D. Mass. Oct. 23,
2015) (Saylor, J.), the court addressed the statement on a
Duracell battery pack that the batteries were “GUARANTEED for 10
YEARS in storage.”

Id. at *1.

The court dismissed the

assertion that the batteries were guaranteed not to fail,
stating that “a ‘guarantee’ is a form of an express warranty . .
. .

Accordingly, to an objectively reasonable consumer, the use

[24]

of the term ‘guaranteed’ on the battery packaging would not be
interpreted as anything beyond a promise to . . . refund . . . a
failed battery.”

Id. at *5–6 (internal citations omitted).

Following that reasoning, the Basic Rental Guarantee is nothing
more than a promise to refund.

Objectively, the word

“guarantee” does not create a promise to pre-screen rental
listings.

Additionally, “guarantee” does not speak to the

accuracy of rental postings.

Finally, under Massachusetts law,

using the term “guarantee” does not constitute a deceptive act.
Id. at *6.
The Plaintiffs offer a lively example to illustrate what a
consumer assumes from the word “guarantee”.
n.10.

Pls.’ Opp’n 12-13 &

The Plaintiffs describe a deli that “guarantees” its

offerings are kosher, and if they are not, the deli will refund
the customer.

Id.

Using this hypothetical, the Plaintiffs

suggest that a reasonable customer would not believe that he has
to confirm whether the deli’s food was in fact kosher.

Id.

From the kosher deli analogy, the Plaintiffs argue that HomeAway
treats the Basic Rental Guarantee as a form of “insurance,”
rather than a guarantee.

Id. at 12-13.

The Court agrees that

the Guarantee reads like an insurance policy because it offers a
refund.

Guarantee Terms 4-8.

Such an after-the-event

reimbursement is precisely what “[a] rational consumer” expects
from an insurance policy.

Indeed, the Plaintiffs describe an

[25]

instance where a disgruntled user referred to the Guarantee’s
“insurance” in a complaint to HomeAway as being “as much a scam
as this listing was on your website.”

Pls.’ Facts ¶ 22.

The flaw in the Plaintiffs’ argument, however, is that it
stretches any implied promise in the Guarantee too far –- all
the way to pre-screening verification.

Id. at 14.

The

Guarantee’s language implies a retroactive investigation into
whether the situation at issue qualifies as internet fraud under
HomeAway’s definition.

The first four words of the Guarantee

make it clear: HomeAway is offering a refund.
4.

Guarantee Terms

That any promised investigation generates a refund further

demonstrates that HomeAway is not holding itself out as
verifying listings.

Refunds are remedial and come after an

event has occurred.

Furthermore, HomeAway makes clear that in

order to qualify for a refund, an individual must follow certain
eligibility requirements.
While “in general, the question whether certain language
creates an express warranty is reserved for the trier of fact,”
Sullivan v. Young Bros. & Co., 91 F.3d 242, 247 (1st Cir. 1996),
as matter of law, the Court concludes here that the language
cited by the Plaintiffs does not create the alleged promises.
See Trustees of Boston Coll., 2016 WL 5799297, at *10-12; Stuto
v. Corning Glass Works, No. CIV. 88-1150-WF, 1990 WL 105615, at
*5-7 (D. Mass. July 23, 1990) (Wolf, J.).

[26]

To the extent that the Guarantee creates an express
warranty, it “must be construed in a manner consistent with
language purporting to negate or limit [the] warrant[y].”
Gilbert & Bennett Mfg. Co. v. Westinghouse Elec. Corp., 445 F.
Supp. 537, 546 (D. Mass. 1977) (Julian, J.).

No rational

customer could read the Guarantee and believe that HomeAway is
promising to verify all rental listings.

This is especially

true where the customer would read the Guarantee in tandem with
HomeAway’s Terms and Conditions.

But see Stuto, 1990 WL 105615,

at *7 (noting that the guarantee by its own terms limited the
scope of any expressed warranty).

HomeAway’s Terms and

Conditions state: “We have no duty to pre-screen content posted
on the Site by members”; “we assume no responsibility to verify
property listing content . . . and travelers are solely
responsible for verifying the accuracy of such content and
descriptions”; “TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE
MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND”; and “WE
EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING
. . . FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY.”
Conditions 14-15, 18.

Terms &

Furthermore, Hiam himself understood that

HomeAway made no promises to verify vacation rental postings.
He concedes, “VRBO doesn’t have any duty to look at . . .
content before it’s posed on the site [and] they have no
obligation to [prescreen].”

Hiam Dep. 78:15-24.

[27]

“In short,

this is not a case where defendant’s advertisements created a
guarantee whose meaning or scope could have been misunderstood
by a reasonable consumer.”
c.

Stuto, 1990 WL 105615, at *7.

HomeAway’s Privacy Policy

Hiam also asserts that HomeAway repeatedly violated its own
Privacy Policy, which constitutes an unfair or deceptive trade
practice.

SAC ¶¶ 75(3), 77.

This claim fails for the same

reason that the Guarantee does not support an unfair or
deceptive trade practice: the evidence in the record does not
allow a rational factfinder to conclude that HomeAway’s conduct
was unfair or deceptive.
According to its Privacy Policy, HomeAway may share user
information “to enforce [its] policies, or where [it is]
permitted to do so by applicable law, such as in response to a
request by a law enforcement or governmental authority, or in
connection with actual or proposed litigation . . . .”
Policy 32.

Privacy

The parties agree that this was the Privacy Policy

in place when the Plaintiffs attempted to reserve the Jewels of
Belize estate.

This language makes no implied or express

promise that HomeAway will disclose user information.

It is

within HomeAway’s complete discretion whether -- if ever -- it
will share personal data.

Terms & Conditions 11 (“[T]here may

be circumstances where we are nevertheless legally obligated . .
. to provide information relating to your listing in order to

[28]

comply with government bodies in relation to investigations,
. . . and we may choose to comply with or disregard such
obligation in our sole discretion.”).

Based on these terms, a

reasonable fact-finder could not conclude that HomeAway has
violated its Privacy Policy.
To the extent that Hiam seeks to hold HomeAway liable as a
“seller of travel services,” his consumer protection claims are
barred by the CDA.

The Guarantee contains a promise to

investigate complaints of internet fraud.
that HomeAway fulfilled this promise.

The evidence shows

The Guarantee also

promises a refund to eligible users, but because Hiam sent money
via wire transfer, he does not qualify for the refund and
HomeAway therefore did not ignore its refund promise.

An

objective reader of the Guarantee cannot construe it to make a
representation, implied or otherwise, that HomeAway will prescreen or verify third-party content.

Finally, there is no

promise in the Privacy Policy that HomeAway will disclose user
information.

As no promise exists, HomeAway’s withholding that

information does not contravene the Privacy Policy; and
therefore, HomeAway’s conduct is not unfair or deceptive.
Accordingly, counts II and VII fail as matter of law.
D.

Concert of Action (Count III) (Hiam)

Hiam also seeks to hold HomeAway liable for concert of
action.

SAC ¶¶ 81-85.

Under a concert of action theory, “a

[29]

defendant who has an agreement with another to perform a
tortious act or to achieve a tortious result, may be liable to a
plaintiff, even if that defendant was not the cause-in-fact of
the injury.”

Santiago v. Sherwin-Williams Co., 794 F. Supp. 29,

31 & n.2 (D. Mass. 1992) (Tauro, J.), aff’d, 3 F.3d 546 (1st
Cir. 1993).

Such “an agreement may be inferred if the conduct

of the defendants suggests a tortious implied meeting of the
minds.”

Id.

Concert of action claims arise where a defendant has been
identified as the cause of the plaintiff’s harm, and the
plaintiff seeks to hold the identified defendant’s coconspirators liable.

Id. at 31.

Although generally, plaintiffs

must identify at least one defendant as the cause-in-fact of
their injury, some courts have allowed plaintiffs to proceed
despite their inability to identify the defendant who caused the
injury.

Id. at 31-32.

“The Massachusetts Supreme Judicial

Court has indicated that it would relax the identification
requirement only in circumstances that would limit a defendant’s
liability to the harm it actually caused.”

Id. at 32 (citing

Payton v. Abbott Labs, 386 Mass. 540 (1982)).

If, however, that

requirement were relaxed here, a website operator could be
liable for harm caused by third-party content, a result that
contravenes Section 230 of the CDA.

[30]

At its core, Hiam’s concert of action claim is based on
content created by a third party and conduct that is coextensive
with publishing.

Hiam faults HomeAway for “concealing the

identities of the fraudsters after learning of their fraud . . .
[and] expressly adopting the fraudulent content of the [Jewels
of Belize] listing . . . .”

SAC ¶ 84 (emphasis added).

bars Hiam’s claim for two reasons.

The CDA

First, it is “well

established that notice of the unlawful nature of the
information provided is not enough to make it the service
provider’s own speech . . . . Section 230 immunity applies even
after notice of the potentially unlawful nature of the thirdparty content.”

Universal Commc’n Sys., Inc., 478 F.3d at 420.

Thus, First Circuit case law precludes Hiam’s concert of action
claim insofar that it attempts to impose liability for
HomeAway’s alleged notice of the fraudulent rental listing.
Second, “expressly adopting” plainly treats HomeAway as both a
publisher and speaker.

This conduct is equivalent to

publishing, or re-publishing, which is a traditional editorial
function.

Zeran, 129 F.3d at 330.

As Congress has expressly barred such claims, HomeAway is
entitled to statutory immunity for providing the contact
information available on the Jewels of Belize listing.
Moreover, the Court dismisses Hiam’s concert of action theory
insofar as he again claims that HomeAway violated its Privacy

[31]

Policy.

As previously noted, there are no factual disputes

about HomeAway’s Privacy Policy or its actions in relation to
that policy.
E.

Fraud and Misrepresentation (Count IV)

The Plaintiffs bring a joint claim for fraud and
misrepresentation.

SAC ¶¶ 86-93.

To recover for common law

fraud, the plaintiff must “prove that the defendant made a false
representation of a material fact with knowledge of its falsity
for the purpose of inducing the plaintiff to act thereon, and
that the plaintiff relied upon the representation as true and
acted upon it to his damage.”
346 Mass. 150, 152 (1963).

Barrett Assocs., Inc. v. Aronson,

Here, HomeAway made no false

representation.
As discussed above, the Plaintiffs’ allegation that
HomeAway “expressly guarantees each and every listing posted on
its website,” SAC ¶ 87, is inaccurate.

First, there is no

express language in the Guarantee, Privacy Policy, or Terms and
Conditions.

Further, customer support agents and Trust and

Security Specialists did not make any express guarantee in
private communications with the Plaintiffs.

Second, the only

guarantees made in HomeAway’s own content are a promise to
investigate internet fraud and a promise to make refunds subject
to certain, clear eligibility requirements.

[32]

The Plaintiffs are correct that HomeAway’s promise to
investigate complaints of internet fraud comes from the Basic
Rental Guarantee and HomeAway employees expressly referred to
investigations in e-mail communications with the Plaintiffs.
See, e.g., VRBO E-mails 1-2.

But again, the Plaintiffs claim

“no investigation of any kind took place . . . .”

SAC ¶ 89.

The record shows that not only did HomeAway investigate the
Plaintiffs’ complaints, but it also reviewed related complaints
from other users.
Whereas a misrepresentation claim under Chapter 93A does
not require Hiam to show that HomeAway knew the representation
was false, under a common-law fraud claim, the Plaintiffs must
prove this knowledge element.

See Cummings, 244 F.3d at 22-23.

Again, the relevant representation here is a promise to
investigate.

As HomeAway conducted such an investigation, there

was no false representation.

HomeAway performed as it promised

it would, and the Plaintiffs have offered nothing to suggest
HomeAway knew its representation was false.

Because the

Plaintiffs are unable to establish the essential element of
knowledge, HomeAway is entitled to summary judgment on this
count.

Celotex Corp., 477 U.S. at 322.

[33]

F.

Deceptive Trade Practices under the Colorado Consumer
Protection Act (Count VI) (Hutchens)

Brooke Hutchens, a citizen of Colorado, brings an action
for deceptive trade practices under the Colorado Consumer
Protection Act.

SAC ¶¶ 2, 98-101.

Hutchens asserts that

HomeAway engaged in a deceptive practice “by purporting to
‘guarantee’ every third party’s rental listing against fraud
. . . .”

Id. ¶¶ 99, 100.6,7

To prove that HomeAway violated the

Colorado Consumer Protection Act, Hutchens must show
(1) that the defendant engaged in an unfair or
deceptive trade practice; (2) that the challenged
Hutchens’s claim adopts Hiam’s Chapter 93A allegations
verbatim. See SAC ¶ 78.
6

Hutchens asserts that HomeAway engaged in a deceptive
trade practice because it
7

[a]dvertises or otherwise represents that goods or
services are guaranteed without clearly and
conspicuously disclosing the nature and extent of the
guarantee, any material conditions or limitations in
the guarantee which are imposed by the guarantor, the
manner in which the guarantor will perform, and the
identity of such guarantor . . . . Guarantees shall
not be used which under normal conditions could not be
practically fulfilled or which are . . . of such a
nature as to have the capacity and tendency of
misleading purchasers or prospective purchasers into
believing that the goods or services so guaranteed
have a greater degree of serviceability, durability,
or performance capability in actual use than is true
in fact. The provisions of this paragraph (r) apply
not only to guarantees but also to warranties, to
disclaimer of warranties, to purported guarantees and
warranties, and to any promise or representation in
the nature of a guarantee or warranty . . . .
Colo. Rev. Stat. Ann. § 6-1-105(1)(r).
[34]

practice occurred in the course of defendant’s
business . . . ; (3) that it significantly impacts the
public as actual or potential consumers of the
defendant’s goods, services, or property; (4) that the
plaintiff suffered injury in fact to a legally
protected interest; and (5) that the challenged
practice caused the plaintiff’s injury.
Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62
P.3d 142, 146-47 (Colo. 2003).

Moreover, to violate Colorado’s

consumer protection statute, the defendant must “knowingly
make[] a misrepresentation or make[] a false representation that
has the capacity to deceive.”

Id. at 148; see also HealthONE of

Denver, Inc. v. UnitedHealth Group, Inc., 805 F. Supp. 2d 1115,
1120 (D. Colo. 2011).
The requirements to prove a deceptive trade practice under
the Colorado Consumer Protection Act are almost identical to
those which must be proved under the Massachusetts’ consumer
protection statute.

As discussed above, the website operator

did not default on any representation it made expressly, through
customer support agents, or impliedly, through the Basic Rental
Guarantee.

HomeAway conducted an investigation in response to

complaints from the Plaintiffs and others.

Because HomeAway

performed as it promised it would, its representation was not
false.

Therefore, HomeAway did not engage in a deceptive trade

practice, and this Court grants summary judgment in favor of
HomeAway on count VI.

[35]

G.

Unjust Enrichment (Count V)

The Plaintiffs also argue that they are entitled to recover
the payment HomeAway received from the creators of the Jewels of
Belize listing.

SAC ¶¶ 95-97.

The Plaintiffs seem to allege

that through the fee Jewels of Belize paid HomeAway in exchange
for posting to VRBO.com, HomeAway “receiv[ed] funds procured by
fraud from the plaintiffs,” which the website operator retained
despite representing that it would use this money to refund the
Plaintiffs under the Guarantee.

Id. ¶ 97.

The Third

Restatement of the Law of Restitution and Unjust Enrichment
states: “A person who obtains benefit by misappropriating
financial assets, or in consequence of their misappropriation by
another, is liable to the victim of the wrong.”

Pls.’ Opp’n 18.

HomeAway asserts that the Plaintiffs’ unjust enrichment claim
fails “because there are no facts indicating that [the
Plaintiffs] transferred any funds to HomeAway.”

Def.’s Mem. 19.

The Plaintiffs clarify that their unjust enrichment claim sounds
in tort, not contract.

Pls.’ Surreply 4-5.

“Under Massachusetts law, the question of whether a claim
sounds in contract or tort depends upon the nature and essence
of the claim.”

Cambridge Literary Props., Ltd. v. W. Goebel

Porzellanfabrik G.m.b.H. & Co. Kg., 448 F. Supp. 2d 244, 262 (D.
Mass. 2006) (Gertner, J.), aff’d, 510 F.3d 77 (1st Cir. 2007).
Asserting that the claim arises from a contract is convincing.

[36]

HomeAway’s Terms and Conditions establish a “clickwrap”
agreement under which, by accessing VRBO.com, users enter a
binding agreement with HomeAway.

Terms & Conditions 10.

The

Plaintiffs acknowledge that they entered into a binding
agreement by using VRBO.com.

Pls.’ Opp’n 7 & n.4.

In addition,

the Plaintiffs present their unjust enrichment claim in
connection with HomeAway’s Basic Rental Guarantee.

SAC ¶ 96.

Before reaching the issue of whether HomeAway has been
unjustly enriched, however, the Court must determine whether the
Plaintiffs have an adequate remedy at law.

See, e.g., Trustees

of Boston Coll., 2016 WL 5799297, at *31 (“Where plaintiffs have
adequate remedies at law, such as contract law, a claim for
unjust enrichment cannot be considered.”); Taylor Woodrow
Blitman Const. Corp. v. Southfield Gardens Co., 534 F. Supp.
340, 347 (D. Mass. 1982) (Nelson, J.).

“The[] mere availability

[of the Chapter 93A count] is a bar to a claim of unjust
enrichment.”

Fernandes v. Havkin, 731 F. Supp. 2d 103, 114 (D.

Mass. 2010) (Bowler, M.J.).

This is true regardless of the

disposition of Hiam’s Chapter 93A claim.

See Adrion v. Knight,

2009 WL 3152885, at *1 n.1 (D. Mass. Sept. 28, 2009) (Stearns,
J.) (“[T]he availability of an adequate remedy at law (whether
successful or not) precludes an equitable claim of unjust
enrichment.”).

Here, Hiam’s claim under Chapter 93A and

[37]

Hutchens’s allegation under Colorado’s consumer protection
statute bar recovery for unjust enrichment.
III. CONCLUSION
For the foregoing reasons, this Court GRANTS HomeAway’s
motion for summary judgment as to all counts of the Plaintiffs’
Second Amended Complaint.

Judgment shall enter for HomeAway.

SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE

[38]